[Senate Hearing 114-900]
[From the U.S. Government Publishing Office]
S. Hrg. 114-900
PROTECTING THE CONSTITUTIONAL RIGHT
TO COUNSEL FOR INDIGENTS CHARGED
WITH MISDEMEANORS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
MAY 13, 2015
__________
Serial No. J-114-17
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
52-846 WASHINGTON : 2023
COMMITTEE ON THE JUDICIARY
CHARLES E. GRASSLEY, Iowa, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont, Ranking
JEFF SESSIONS, Alabama Member
LINDSEY O. GRAHAM, South Carolina DIANNE FEINSTEIN, California
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
MICHAEL S. LEE, Utah RICHARD J. DURBIN, Illinois
TED CRUZ, Texas SHELDON WHITEHOUSE, Rhode Island
JEFF FLAKE, Arizona AMY KLOBUCHAR, Minnesota
DAVID VITTER, Louisiana AL FRANKEN, Minnesota
DAVID PERDUE, Georgia CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina RICHARD BLUMENTHAL, Connecticut
Kolan L. Davis, Majority Staff Director
Kristine Lucius, Minority Staff Director
C O N T E N T S
----------
MAY 13, 2015, 10:03 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 1
prepared statement........................................... 75
Franken, Hon. Al, a U.S. Senator from the State of Minnesota..... 3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont
prepared statement........................................... 77
WITNESSES TESTIMONY
Witness List..................................................... 27
Boruchowitz, Professor Robert C.................................. 10
prepared statement........................................... 45
Cady, Honorable Mark S........................................... 5
prepared statement........................................... 28
Fulton, Neil..................................................... 8
prepared statement........................................... 42
Hashimoto, Professor Erica J..................................... 12
prepared statement........................................... 61
Singleton, David A............................................... 7
prepared statement........................................... 35
QUESTIONS
Questions submitted to Boruchowitz, Professor Robert C. by:
Senator Grassley............................................. 85
Questions submitted to Cady, Honorable Mark S. and Singleton,
David A. by:
Senator Grassley............................................. 79
Questions submitted to Cady, Honorable Mark S. by:
Senator Grassley............................................. 79
Questions submitted to Fulton, Neil by:
Senator Grassley............................................. 94
Questions submitted to Hashimoto, Professor Erica J. by:
Senator Grassley............................................. 100
Questions submitted to Singleton, David A. by:
Senator Grassley............................................. 79
ANSWERS
Responses of Boruchowitz, Professor Robert C. to questions
submitted by Senator Grassley.................................. 85
Responses of Cady, Honorable Mark S. to questions submitted by
Senator Grassley and Senator Vitter............................ 91
Responses of Fulton, Neil to questions submitted by Senator
Grassley....................................................... 94
Responses of Hashimoto, Professor Erica J. to questions submitted
by Senator Grassley............................................ 100
Responses of Singleton, David A. to questions submitted by
Senator Grassley............................................... 107
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Internet Locations of Citation Documents..................... 111
Submitted by Senator Grassley's Office:
NLADA American Council of Chief Defenders dated May 20, 2015. 112
ACLU American Civil Liberties Union dated May 13, 2015....... 116
Koch Industries Letter dated May 6, 2015..................... 122
The Constitution Project dated May 12, 2015.................. 124
NLADA National Legal Aid & Defender Association dated May 13,
2015....................................................... 127
SJC joint letter - misdemeanors hearing...................... 133
Submitted by Senator Leahy's Office:
Exhibit A--NAPD National Association for Public Defense--
Reports from Members....................................... 135
Exhibit B--NAPD National Association for Public Defense--
Statement on Predatory Practices in Criminal Courts........ 138
Exhibit C--NAPD National Association for Public Defense--
Workload Statement......................................... 150
Exhibit D--Louisville Law Review Article..................... 154
National Association for Public Defense--Letter to Chairman
Grassley and Senator Leahy................................. 164
PROTECTING THE CONSTITUTIONAL RIGHT
TO COUNSEL FOR INDIGENTS CHARGED
WITH MISDEMEANORS
----------
WEDNESDAY, MAY 13, 2015
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 10:03 a.m., Room
226, Dirksen Senate Office Building, Hon. Charles E. Grassley,
Chairman of the Committee, presiding.
Present: Senators Durbin, Klobuchar, Franken and Coons.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR
FROM THE STATE OF IOWA
Chairman Grassley. The Minority members are on their way to
the Committee meeting. I think I will start out with my opening
statement. Before I give my opening statement, my friend,
Senator Leahy, cannot be here today as Ranking Member of the
full Committee and he has a statement that I am going to put in
the record, that he has asked me to put in the record for
himself. I have done that.
[The prepared statement of Senator Leahy appears as a
submission for the record]
Chairman Grassley. I want to say thank you to all the
people that are participating, as well as those in the
audience.
Today the Senate Judiciary Committee holds this hearing on
indigent misdemeanor representation. According to the Sixth
Amendment Center and certainly in my memory, this is the first
time the Senate Judiciary Committee has ever held a hearing on
this specific subject.
The Sixth Amendment provides criminal defendants with
assistance of counsel. For more than 50 years following the
Gideon decision, it has been clear that it is necessary to give
low income people accused of crime the right to a lawyer to
help them navigate the system, preserve their rights, and make
sure innocent people do not go to jail.
Clarence Gideon himself, when retried with a lawyer
representing him, was acquitted, and that landmark ruling was
extended in 1972 to misdemeanor defendants for good reason. The
overwhelming majority of people who face criminal charges are
prosecuted for misdemeanors.
In Iowa, for example, 80 percent of all criminal
prosecutions are for misdemeanors, among the highest rate in
the country. Some States have adhered to the Constitution. In
Iowa, our district courts do an excellent job of providing
counsel to misdemeanor defendants.
I am pleased that our Chief Justice of the Iowa Supreme
Court is with us today. Last month his court extended the right
to counsel by not permitting un-counseled convictions to be
used as sentencing enhancements in subsequent crimes.
Un-counseled convictions must exist in Iowa, however, or
the decision would not even be necessary. Many States are not
providing counsel as our Constitution requires. I think it is
quite a widespread problem.
In reality, the Supreme Court's Sixth Amendment decisions
regarding misdemeanor defendants are violated thousands of
times. No Supreme Court decision in our history have been more
violated so widely, so frequently, and for so long.
Consider what is happening just in some of the States
represented on this Committee. Defenders are not present at
arraignment. A large number of misdemeanor defendants plead
guilty without lawyers. Defendants who have been locked up
pending their first appearance are told that they can plead
guilty and be sentenced to time served, but if they choose to
be represented by counsel, they will wait in jail until one is
appointed. Problems exist on a smaller scale within our own
Federal system, as we will hear.
When misdemeanor defendants are not given counsel, no one
can challenge the legality of a traffic stop or to make the
prosecution prove every element of an offense beyond a
reasonable doubt. Innocent people may be going to jail.
In locations where lawyers are provided at every stage of
the process, about 25 percent of all cases are dismissed. There
are members of the Senate who want to reduce sentences for
felons. At least those individuals have been proven beyond a
doubt to have, for instance, sold large quantities of drugs
that poison our children or bring violence to our streets.
To really address sentencing reform, we should also be
looking at the vast majority of crimes in the country, meaning
misdemeanors, and the un-counseled prison sentences that punish
them.
These constitutional violations cause serious
repercussions. People who are convicted of misdemeanors,
whether they receive legal representation or not, may have
problems obtaining a job for the rest of their lives. That
hurts those individuals, it hurts the economy, it hurts all of
us.
Misdemeanor convictions give rise to other collateral
consequences. Housing assistance and student loan eligibility
might be compromised. Some misdemeanor convictions can lead to
loss of gun ownership rights. Some misdemeanors, when
repeatedly violated, become felonies.
Yet, prior un-counseled misdemeanors should not count
toward felonies and their consequences. Misdemeanor convictions
can also make defendants ineligible for a Federal safety valve.
That is a provision that allows first-time low-level drug
offenders to avoid mandatory minimum sentences. In many
instances, misdemeanor defendants are unaware of those
consequences then, when they enter their guilty pleas.
I do not think that the solution to the problem is another
Federal grant program. According to a 2012 GAO report, there
are already such--13 such programs and of the nine that can be
used for indigent defense and for other purposes, States have
not used the grants for counsel.
Indigent representation is not a high priority. In fact,
barely half of all defender offices even knew that these funds
could be used for indigent defense.
Perhaps we need a better Federal effort in coordinating and
maybe even dispensing these funds, combined with transparency
and accountability for why States are not spending available
funds for indigent defense.
One way to address the problem would be for States to
reclassify some misdemeanors as civil offenses or eliminate
prison sentences for various misdemeanors. Perhaps civil fines
would be just as effective without making States pay for
lawyers or causing collateral consequences.
We will hear testimony today about divergent programs that
take some offenses out of the criminal justice system. Again,
there are Committee members who are concerned about over-
criminalization. This is a place to begin.
States often make lawyers sit through CLE programs of
dubious value. Perhaps it would render a better public service
by requiring lawyers to provide assistance to indigent
misdemeanor defendants instead.
What is particularly troubling about these constitutional
violations is who is committing them. It is our judicial
system. The States and the State courts must adhere to the Bill
of Rights. Respect for our courts, as well as the rule of law
demands that.
Widespread, intractable violations of the Sixth Amendment
have existed for more than 40 years. Few prospects exist that
the States will soon remedy those violations.
State systems need to be reformed. We need to know what is
happening. We pride ourselves on a legal system that provides
equal justice for all. For that to be real, we must make sure
that people without financial means receive representation.
I would, at this point, ask unanimous consent to include in
the record a letter from Mark V. Holden, Senior Vice President,
General Counsel and Secretary, Koch Industries, in support of
today's hearing.
[The letter referred to as a submission for the record]
Chairman Grassley. We also have 13 other letters to place
in the record that I will just categorize as varying from
across the political spectrum in support of this hearing and
doing something with it.
[The letters referred to as a submission for the record]
Chairman Grassley. I call on my friend from Minnesota for
any statement that you want to make, and thank you for coming.
OPENING STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR FROM THE
STATE OF MINNESOTA
Senator Franken. Thank you, Mr. Chairman, for calling this
hearing on the Sixth Amendment right to counsel in misdemeanor
cases.
This is a very important issue and a bipartisan issue.
Despite the fact that misdemeanors represent 70 to 80 percent
of all criminal cases, misdemeanors have not been a significant
part of the conversation surrounding criminal justice reform,
and they should be.
I am glad to see this issue come before the Judiciary
Committee and I appreciate the opportunity to attend this
hearing. It has been more than 50 years since the U.S. Supreme
Court unanimously ruled in Gideon v. Wainwright, saying that
defendants facing criminal charges have a right to counsel
regardless of their ability to pay for legal representation.
In that decision, Justice Black wrote that any person held
in the court who is too poor to hire a lawyer cannot be assured
a fair trial unless counsel is provided for him. He called that
an, quote, ``obvious truth.''
Yet, in State and local courts across this country,
defendants in misdemeanor proceedings are still appearing
before judges without an attorney because they are unable to
afford one. States and localities staring down record
misdemeanor backlogs and shrinking budgets are not providing
those defendants with access to counsel despite their
constitutional obligation to do so.
As the Nation engages in difficult conversations about the
effects of mass incarceration and the State of our criminal
justice system, we are permitting scores of defendants from our
most vulnerable communities to appear unrepresented in court.
The stakes are high. Misdemeanors or so-called lesser
offenses carry enormous and lasting consequences. Individuals
convicted of misdemeanors do not just face crime and
imprisonment. Long after they have served their sentences,
misdemeanor offenders are denied job opportunities and career
advancement. They are deemed ineligible for student loans and
even housing.
Despite the consequences and the costs those consequences
impose on our communities and on our country, many of our
citizens face these charges alone without assistance and with
little chance of success.
I look forward to hearing more from our witnesses about how
we can confront this obvious truth and better meet our
constitutional obligation to ensure that defendants receive a
fair trial.
Thank you again, Mr. Chairman.
Chairman Grassley. Thank you, Senator Franken.
I am going to introduce everybody before you testify and
then we will move from Mr. Cady over to Ms. Hashimoto, in that
way.
I want to introduce a person that has testified before our
Committee before, the Chief Justice since 2010, but a member of
the Supreme Court of Iowa since 1998. He earned both his
undergraduate and law degrees from Drake University. He has
been a State judge since 1983.
In 2013, he was elected to the Conference of Chief
Justices' Board of Directors. Chief Justice Cady is also an
adjunct faculty member at Buena Vista University.
David Singleton is an Executive Director, Ohio Justice and
Policy Center. OJPC provides free legal representation to
prisoners and ex-offenders. Mr. Singleton is a graduate of Duke
University and Harvard Law School.
Next is Neil Fulton, United States Federal Public Defender
for the District of North and South Dakota since 2010. Mr.
Fulton formerly was in private practice and was also Chief of
Staff to our new colleague, then Governor Mike Rounds. Mr.
Fulton graduated from Yale University and the University of
Minnesota Law School.
Robert Boruchowitz--I may just call you Professor Robert--
Professor of Practice and Director of the Defender Initiative
at Seattle University School of Law. He was Director of the
Defenders Association in Seattle for many years and has
published widely on misdemeanor defense cases. He is a graduate
of Kenyon College and Northwestern University School of Law.
Erica Hashimoto is Associate Dean and a professor at the
University of Georgia School of Law. She is a former Assistant
Federal Defender. Much of Professor Hashimoto's scholarship has
been devoted to the right to counsel in criminal cases. She
graduated from Harvard University and Georgetown Law Center.
Chief Justice Cady, will you start out, please?
STATEMENT OF HON. MARK S. CADY, CHIEF JUSTICE, IOWA SUPREME
COURT, DES MOINES, IOWA
Mr. Cady. Thank you very much, Mr. Chairman, Ranking Member
Franken.
I did have the honor to address this Committee 3 years ago
on the issue of cameras in the courtroom and it is again an
honor to be before you this morning to talk about this
important issue of protecting the constitutional right to
counsel for indigents being charged with misdemeanors.
Before I begin my remarks, let me just briefly describe the
background of the organization of the Council for Chief
Justices, and I submit my testimony this morning as a member of
the Board of Directors of that organization.
It was established in 1949 and its purpose was to provide
input and improve the administration of justice throughout the
country. As you know, State courts handle 97 percent of all
judicial proceedings in this country.
The Conference of Chief Justices recognizes the Sixth
Amendment right to counsel and the parallel State Constitution
provisions that project the most important--some of the most
important rights of people that are brought into our courts on
criminal offenses.
It is indeed important this morning that we remember the
protection at the center of the issue that we address provided
by the United States Constitution. It is a protection that, as
the Chairman described, is trumpeted by Clarence Gideon over 50
years ago and later extended by the U.S. Supreme Court to all
criminal cases, including misdemeanors, where it could lead to
a sentence of incarceration or even a suspended sentence.
It is--it is a right that helps define our collective
understanding of justice.
Providing indigent defendants with representation, however,
is fiscally challenging for many States. In 2014, the
Conference of Chief Justices adopted a resolution entitled In
Support of the Establishment of a National Center for the Right
to Counsel, identified as H.R. 3407.
The resolution noted that State and local governments
continue to struggle to adequately fund legal representation
for indigent criminal defendants. A copy of this resolution is
attached to the written testimony.
At present, the mechanism used to deliver indigent defense
services nationally can best be described as a patchwork of
programs rather than a comprehensive system. They are funded in
different ways. They are structured to operate in different
ways and even the guidelines for eligibility are different.
Attached to the testimony is a spreadsheet describing the
statutory provisions for indigent determination in most States,
but I think a review of that information will demonstrate that
courts have gone to considerable lengths to ensure that
everyone with a bonafide need for representation can qualify
for counsel.
Indigent defense delivery systems in every State are
underfunded; in many States, severely underfunded. Courts
handling misdemeanor cases almost always have caseloads that
are so high that they necessitate processing cases in almost an
assembly line fashion.
This leads to a high percentage of cases resulting in
guilty pleas without counsel to get the benefit of receiving
the fine and court costs as a sole sanction. Although this may
look attractive to criminal defendants at the time and it may
even induce them to waive legitimate defenses, they are exposed
to many, many collateral consequences, as have already been
identified. These consequences can make the quality of
representation more and more essential.
The conviction itself and the permanent and easily
accessible record that it leaves can and does result in
significant hurdles to future employment, education, housing
and so many other opportunities to achieving a productive life.
The States have made efforts to ensure that they are in
compliance with their requirements under the Sixth Amendment to
the Constitution to provide representation to indigent
defendants. Nevada and Pennsylvania, for example, have recently
established commissions to look into the issue.
Other States have chosen to limit and redefine the number
of charges that can carry the possibility of incarceration as a
sanction in hopes of utilizing existing resources more
effectively. North Carolina is an example.
Washington's Supreme Court recently adopted mandatory
misdemeanor caseload limits, as well as other representation
improvements. These standards have brought attention to the
misdemeanor issue for public defense and have resulted in
public defense upgrades in hundreds of local courts there.
These efforts do mark progress, but much, much more remains.
The Conference of Chief Justices believes that the public
would greatly benefit by the establishment of a national center
for the right to counsel to fund innovations, support research
on indigent defense delivery systems, support training and
technology assistance programming, and to serve as a
clearinghouse of information. The center could help identify
the best practices currently employed nationally and, over
time, help bring uniformity to this issue. It would also help
improve the public confidence and trust in our criminal justice
system.
Thank you again for asking for our input on this very
important matter. The Conference of Chief Justices stands ready
to work collaboratively and cooperatively to craft solutions to
this important issue.
I will look forward and be happy to answer questions later
on. Thank you.
[The prepared statement of Mr. Cady appears as a submission
for the record]
Chairman Grassley. Thank you, Mr. Chief Justice.
Mr. Singleton.
STATEMENT OF DAVID A. SINGLETON, EXECUTIVE DIRECTOR, OHIO
JUSTICE AND POLICY CENTER, CINCINNATI, OHIO
Mr. Singleton. Good morning, Chairman Grassley, Ranking
Member Franken and Senator Durbin.
I am delighted to be here this morning to offer my thoughts
on this very important issue of protecting the right to counsel
in misdemeanor cases. I think we can all agree that the problem
is widespread and in my written testimony I have some examples
from Ohio, recent examples where the courts of appeals had to
reverse convictions where the right to counsel was denied.
Rather than talk about those cases and rather than getting
into lots of statistics and numbers, I want to do something
different in my brief time this morning. I want to try and put
a human face on this problem and talk about how misdemeanor
convictions impact the lives of folks who are just trying to do
the best they can in society and lead productive lives.
There are some people out there who would say misdemeanors,
what is the big deal; you do not go off to prison for a long
time if you get convicted of misdemeanors. Misdemeanors matter.
They matter because they can have life--lifelong impacts on
people's lives, their ability to provide for themselves, and
all sorts of collateral sanctions that apply that make that
difficult.
I want to tell you about Melinda. Melinda is a former
client of mine. She is a mother of three and she has raised her
children pretty much by herself. Back in the 1990's, she got
convicted of misdemeanor offenses that stemmed from a seizure
that she suffered. She has suffered from seizures since she was
19 and had gone off the medication because the doctors were
trying to find a new therapy for her.
One afternoon while she was on the phone, she suffered a
seizure and, luckily, her friend on the phone recognized it and
called 911. The paramedics come. When the paramedics come, they
find her three young children, ages 3, 4 and 5, downstairs
unattended and there were cleaning supplies out and knives on
the counter in the kitchen.
They walked upstairs and there were missing screens in the
windows, an electrical outlet not covered. They took her to the
hospital. She got better. The paramedics reported what they
found to the police. A couple of weeks later, Melinda got
summoned to court where she learned she was being charged with
child endangerment.
A month after that, Melinda stood before the judge without
a lawyer and she was appointed a public defender, but the
public defender was not there. What the judge did was say,
``Look, I am not sure why you are here based on the facts of
this case, but I will tell you what I am going to do. If you
plead no contest, I will allow you to get non-reporting
probation. You do not have to show up and report to a probation
officer. You can be on your way.''
That is what Melinda did. The problem was that years later
when she was struggling to earn a living to support her three
children, she found this great job in a daycare center and she
was good at it, she was very good at it. The employer loved
her, the kids loved her. Then there was a change in the law
that required a mandatory background check.
When the employer found that she had been convicted of
endangering children, they fired her, let her go. That was a
job that Melinda loved and was good at.
What would have happened had Melinda had a lawyer standing
by her side? Would she have pled no contest to crimes for which
she had a viable defense? That viable defense was, No. 1, she
was cleaning her house on the day that this happened, cleaning
her kitchen. That is why the cleaning supplies were out. She
tried to get her landlord to fix the problems, but he told her
it was not his responsibility because he had just sold the
building to someone else.
Would she have been found guilty? Perhaps not. She had a
viable defense, but nobody told her that. As a result, she
loses her income and her ability to support her children.
Melinda is not alone. There are thousands of people in Ohio
and millions across this country who are impacted by collateral
sanctions.
In the State of Ohio, there are 700 laws on the books that
restrict people from working in certain industries; 20 percent
of those apply to misdemeanor offenses. We know from the work
that the ABA has done cataloging collateral sanctions across
this country that this problem has huge dimensions. It is not
just jobs. It is also the ability to get educational support,
housing and the like.
The time has come for us to do something about this
problem, to make the promise of Gideon real. I urge you--I am
not going to go through a lot of recommendations. I have read
the recommendations from Professors Boruchowitz and Hashimoto
and I agree with them and I agree with what the Chief Justice
just said in terms of the establishment of a center. I urge
this body to recommend that change happen and change happen
soon.
Thank you.
[The prepared statement of Mr. Singleton appears as a
submission for the record]
Chairman Grassley. Thank you, Mr. Singleton.
Mr. Fulton.
STATEMENT OF NEIL FULTON, FEDERAL PUBLIC DEFENDER, DISTRICT OF
SOUTH DAKOTA AND NORTH DAKOTA, PIERRE, SOUTH DAKOTA
Mr. Fulton. Thank you, Mr. Chairman, Ranking Member Franken
and Senator Durbin, for your interest in the issue and the
invitation.
In North and South Dakota, with 13 Indian reservations and
approximately two-thirds of our cases in any given year arising
from Indian country and the concurrent Federal and Tribal
jurisdiction over many offenses, our interaction with Tribal
courts in the Federal defenders office is frequent and the
issue of misdemeanor representation in Tribal courts is
critical to our practice.
Many of the problems we encounter are similar to those you
will hear from State practitioners, but some are unique to the
interplay of Federal law and Tribal jurisdiction.
A first and critical unique aspect about Tribal courts is
that there is no Sixth Amendment right for Native American
offenders in Tribal courts. Sentences of up to 1 year of
incarceration can be imposed with no right to appointed counsel
in Tribal courts.
In instances where tribes allow counsel under their laws,
in many instances, counsel is provided by lay advocates, not
law trained individuals. That problem is exacerbated by the
rural nature of most reservation areas. There simply are no
lawyers.
In South Dakota, the Chief Justice has initiated a program
to draw more lawyers to rural areas because regardless of
whether you are in Tribal or State court, there just is no
lawyer available. In Tribal court, the problem is unique
because there is no protection and no guarantee of a lawyer.
As a result, guilty pleas without counsel are common, I
would say typical, in my experience in Tribal courts. Why? It
is the ultimate rational choice. You plead today, you get out;
you assert your right to counsel and a defense, you will stay
in jail.
Additionally, because of concurrent Federal jurisdiction,
many of our clients, unfortunately, believe that a guilty plea
will provide them with double jeopardy protection against
Federal charges down the road. That belief is mistaken.
In fact, the concurrent Federal and Tribal jurisdiction
exacerbates that problem because in many instances, Tribal
misdemeanors are used as entry points to a Federal prosecution.
As an example, an individual may be initially arrested for a
simple assault or for a public intoxication or a liquor
violation for a more serious assault charge or even a homicide.
That individual is detained. Statements are obtained and
the case is developed with that individual not realizing that
Federal charges are available, not realizing the right to
counsel and no guarantee thereof.
Admissions are made. No global plea agreements are worked
out. In some instances, the appointment of special United
States Attorneys deputized in both Tribal and Federal court,
the prosecution is initiated and driven by the person who will
eventually pursue it in Federal court and the individual has no
counsel at any point while they make critical admissions.
Collateral consequences are severe. You have heard from
other people about that and will hear more, but it is
particularly acute in Indian country. Six of the 10 lowest per
capita income counties are in North and South Dakota. They are
all Indian country. Employment is unavailable endemically. If
you have disqualifying misdemeanor convictions, it is even
worse.
Student aid is unavailable to lift people out of poverty
and if you are ineligible for government subsidized housing in
Indian country, that is to say you are ineligible for housing,
period.
In many instances, heads of households will plead guilty to
misdemeanors, thus becoming ineligible to retain their housing
and displacing both them and their family.
Additionally, a disturbing collateral consequence is that
un-counseled Tribal convictions can serve as predicates for
certain Federal offenses. An example, the Eighth Circuit Court
of Appeals has affirmed the use of un-counseled Tribal domestic
assault convictions as predicate offenses for habitual domestic
offender convictions under 18 USC 117.
The efforts by Congress to address these issues in Tribal
courts under the Indian Civil Rights Act, the Tribal Law and
Order Act and VAWA have not solved the problem, at least not
yet.
My compatriots in other places have described instances
where the Indian Civil Rights Act or the Tribal Law and Order
Act protections have been ignored, either by mistake or bad
faith; individuals receiving up to 2,500 days in detention post
the enactment of TLOA, individuals receiving almost 2.5 years
after TLOA was enacted, without counsel.
The problem is the remedies to address these issues are
very cumbersome. One has the right to pursue habeas corpus in
Federal court, but you have to first exhaust your revenues,
excuse me, remedies in Tribal court. That is a cumbersome
process and you again face this rational choice of do I assert
my rights or do I get out of jail now, and most people get out
of jail now.
Additionally, the Violence Against Women Act
Reauthorization of 2013 expanded the number of people subject
to this problem by giving tribes the ability to exercise
jurisdiction over non-Indians in certain instances and both
TLOA and VAWA expand the available sentencing resources and
maximums that tribes can impose.
This problem is significant, it is systemic, and it has a
real impact on our clients on a daily basis. It needs to be
addressed.
I appreciate the Committee's interest in the topic and the
opportunity to be here today. Thank you.
[The prepared statement of Mr. Fulton appears as a
submission for the record]
Chairman Grassley. Thank you, Mr. Fulton.
Professor Boruchowitz. Is that pretty close?
STATEMENT OF ROBERT C. BORUCHOWITZ, PROFESSOR FROM PRACTICE,
SEATTLE UNIVERSITY SCHOOL OF LAW, SEATTLE, WASHINGTON
Mr. Boruchowitz. That is very close, Senator. Thank you.
Thank you, Ranking Member Franken and Senator Durbin. Thank you
for holding this hearing.
Misdemeanor public defense in much of the country is broken
and in many places it hardly exists. Thousands of people go to
jail every day without a lawyer. Other thousands have lawyers
who are overwhelmed with cases, poorly trained, poorly paid,
and operating without investigation and expert witness
resources.
As you have just heard, convictions result in heavy
consequences besides jail and fines. As Federal Judge Lasnik
said about two cities in Washington, ``Actual innocence could
go unnoticed and unchampioned.''
Capable lawyers can help avoid many of those convictions
and consequences. In other cases, the amount of jail and fines
could be diminished and cases against innocent people like
David's client could be dismissed.
Federal legislation and targeted funding could make a
difference.
Most people who go to court go to misdemeanor court. There
are approximately 10 million cases a year; in many States at
least one for every 30 residents. The cost is staggering, as
the full cost of a misdemeanor is estimated to be about $1,700.
This affects every American. Almost everyone knows someone
who has been charged with a misdemeanor, whether a minor in
possession of alcohol, shoplifting, driving with a suspended
license, or something more serious, such as DUI or assault.
I have seen judges run through the advice of rights so
quickly that people do not understand what is being said. Many
courts send defendants to talk to a prosecutor before they even
have a chance to see a defender.
I saw a judge in Arizona instructing defendants to waive
their right. He said, ``I want you to waive your right to an
attorney. You have a right to have an attorney, but I am not
going to give you the public defender. You would have to go and
hire one and I do not think you are going to do that. I think
you and I are going to talk about this right here, right now,
right.''
Many court proceedings take only a few minutes, making
justice impossible. I submitted a transcript of one that took
less than 90 seconds. There is no way in that time that an
accused person can understand and make a meaningful decision
about whether to exercise their rights and how to present their
perspective of the case for the judge to consider, and there is
no way for the judge to know whether the person has made a
knowing, intelligent and voluntary waiver of their rights or is
making a valid guilty plea or to know anything about the
defendant or the case and what an appropriate sentence should
be.
I have seen defenders so overwhelmed that they literally
spend 5 minutes in a hallway talking to a client before
advising her to plead guilty. The lawyers never asked her what
happened in the case or what she wanted to do with it.
The racial disproportionality in misdemeanors is
significant. A black person is 3.7 times more likely to be
arrested for marijuana possession than a white person, even
though blacks and whites use marijuana at similar rates.
Historically, although Seattle's African-American
population is roughly 8 percent, more than 40 percent of the
suspended license charges have been against African-Americans.
A recent Federal court decision highlights many of the
problems. The for-profit contract defenders in these two cities
were each handling about 1,000 cases a year part-time. The
judge found that public defense clients were systematically
deprived of the assistance of counsel. There was almost no
evidence that the defenders did any investigation or legal
analysis and adversarial testing of the government's case was
nonexistent. It was basically a meet-and-plead system.
One way of responding to reducing the demand for defenders
is that hundreds of thousands of cases could be reclassified or
diverted, in my opinion, saving more than $1 billion a year.
Each year, there are more than 700,000 arrests for drunkenness,
disorderly conduct and vagrancy. There are about 600,000 for
possession of marijuana.
If drunkenness were treated as a health problem and not a
crime, as Colorado does, for example, approximately $600
million a year would be available for treatment and other uses.
Savings easily could exceed $1 billion if disorderly conduct
were included, not to mention suspended driver's license, which
the Spokane City prosecutor, for example, has developed a
diversion for, not only reducing the defender caseload by one-
third, but also saving hundreds of thousands of dollars and by
combining with a relicensing program, yielded millions of
dollars in revenue as people paid their fines.
King County, Washington has law enforcement-assisted
diversion, diverting drug and prostitution suspects to a social
service program instead of jail and prosecution. An evaluation
found that participants in that program were 58 percent less
likely to be arrested.
I recommend the Senate take several steps. Some existing
Justice Department funding to the States could be devoted to
misdemeanor public defense, with funding for pilot projects,
training, research and development of relicensing and diversion
programs.
Some of the funding could be conditioned on a certification
by the State that they are providing counsel for eligible
defendants.
The Senate should adopt the Gideon's Promise Act proposed
by Senator Leahy, providing technical assistance and
authorizing the attorney general to bring civil actions to
remedy patterns or practices that deprive persons of their
right to counsel.
The Senate should adopt the national center for the right
to counsel as proposed by Representative Deutch.
It is a disgrace that 52 years after Gideon and 43 after
Argersinger, thousands of accused persons face the power of the
State alone. It is not fair, it is economically foolish and
wasteful. The impact on people's lives is dramatic.
The Congress can help remedy this situation. Thank you very
much.
[The prepared statement of Mr. Boruchowitz appears as a
submission for the record]
Chairman Grassley. Thank you, Professor.
Professor Hashimoto.
STATEMENT OF ERICA J. HASHIMOTO, ALLEN POST PROFESSOR OF LAW,
UNIVERSITY OF GEORGIA LAW SCHOOL, ATHENS, GEORGIA
Ms. Hashimoto. Thank you. Thank you, Chairman Grassley,
Ranking Member Franken, and Senator Durbin. Every year,
thousands, if not millions, of defendants charged with
misdemeanor criminal offenses are not represented by lawyers,
even though our Constitution guarantees them the right to
counsel.
These widespread constitutional violations have created a
crisis in which defendants charged with criminal misdemeanors
are steamrolled by our criminal justice system.
The Supreme Court has said that the processing of millions
of criminal misdemeanors each year resembles assembly line
justice. In one jurisdiction, it is known as McJustice, because
of the breathtaking speed with which cases are resolved.
In Florida, for instance, the adjudication of misdemeanor
cases, including findings of guilt and sentencing, took an
average of 3 minutes per case. In 3 minutes, a person
transforms from a full rights-bearing citizen, presumed
innocent, into a convicted criminal, subject to the
government's authority to intrude in every part of her life.
The searching pursuit of justice that the Constitution
guarantees before States can deprive citizens of their freedom
simply cannot happen in 3 minutes.
Because of these concerns, the Supreme Court has held that
there is a constitutional right to counsel in most misdemeanor
cases. As the Court recognized, in a system in which speed
often is substituted for care, lawyers can ensure that the
constitutional rights of criminal defendants remain protected.
When the right to counsel is denied, violations of
fundamental constitutional rights, including the First
Amendment right to free speech, the Second Amendment right to
bear arms, the Fourth Amendment right to be free from
unconstitutional searches and seizures, and the Fourteenth
Amendment right to due process will occur. And without lawyers,
deprivations of the protections that our founders enshrined in
the Constitution become invisible and go uncorrected.
In that sense, the Sixth Amendment right to counsel serves
as the gateway to protecting all of the other constitutional
rights of defendants. Lawyers also can assure that facts about
defendants that may bear on guilt or sentencing and that may
have gotten lost in the haste of pushing the case to a
resolution are brought to the attention of the court.
Despite its importance, the constitutional right to counsel
has been ignored in many local and State courtrooms across the
country. Because many jurisdictions do not keep data on
misdemeanor representation rates, authors of numerous reports
have had to go out to individual jurisdictions to watch what is
actually happening in those courts and every report that has
studied the issue of misdemeanor representation in States from
Florida to Michigan to Kentucky to Washington and many States
in between has found a significant percentage of misdemeanor
defendants who do not have a lawyer and who have not waived the
right to counsel.
The failure to provide counsel has enormous costs above and
beyond the average $30,000 a year the government spends
incarcerating that person, including the loss of jobs that
provide vital and often the only means of support to low income
people, the inability to get jobs in the future, and the
States' shuttling of children into State custody because their
parents have been unconstitutionally incarcerated.
The cost to State and local jurisdictions, to the
defendants and their families, and to the community as a whole
are immeasurable.
There is a crisis in misdemeanor courts in communities
across the country. The question is what to do about it.
Federal legislation is vital in order to provide States and
localities both with incentives to address the problem and
assistance as they try to move toward constitutional
compliance.
Beginning with incentives, States and, in particular, local
courts have no incentive to comply with the Sixth Amendment
right to counsel because there is no cost to the denial of that
right. Federal legislation needs to provide that incentive.
If there is clear evidence that a jurisdiction is engaging
in a pattern or practice of violating the constitutional right
to counsel, the Department of Justice should have authorization
to take action against that jurisdiction by filing for
injunctive or declaratory relief.
In addition, funding from the Federal Government should be
conditioned, first, on providing data on representation rates
in misdemeanor cases and, second, on having an indigent defense
structure to ensure that counsel are available to represent
defendants.
Finally, as Chief Justice Cady pointed out, a national
center for right to counsel would assist States as they try to
move toward constitutional compliance.
Such measures would bring us closer to the right to counsel
guaranteed by the Sixth Amendment.
Thank you for your attention to this issue.
[The prepared statement of Ms. Hashimoto appears as a
submission for the record]
Chairman Grassley. Thank you, to all of you. I am going to
call on Senator Durbin, if he would go first, please.
Senator Durbin. That is kind of you, Mr. Chairman. Thank
you very much.
As I listen to the testimony here, several things come to
mind. There is an answer, I think, that I believe is helpful
and I would like your reaction to it.
In 2008, we passed a bill here, which became the law,
called the John R. Justice, let me get the titles right--
Prosecutors and Defenders Incentive Act and what we did with
this was provide money through the Department of Justice to
young prosecutors and public defenders who were willing to make
a 3-year commitment and if they would make that commitment, we
would help them pay back their student loans.
It turns out to be an extremely popular program because
many law school grads find it impossible to take these jobs--
they do not pay as much as some other opportunities--and we are
denied their services.
It has been a good law, I think, despite the fact that I
sponsored it, and it has not been adequately funded. We had it
authorized at $25 million. One year I believe that there was
$10 million for the Nation put into this student loan
forgiveness, and now we are down to about $2 million.
We have helped thousands stay in these jobs and commit
themselves to these jobs.
Tell me what you think the impact of that would be in terms
of providing more professional prosecutors and more public
defenders, in your experience.
Mr. Boruchowitz. Senator, it is a great program. It has
made an enormous difference. The debt of many of our graduates
now is in excess of $100,000 when they get out. If they are
lucky, they can make $50,000 as a public defender or a
prosecutor starting out. If they have an opportunity to go with
a big firm making double or triple that, it is hard to go into
public service.
It would be enormously helpful to fund that fully so that
defenders and prosecutors could be paid.
However, it assumes that those jobs exist and if you are in
a place like South Carolina, for instance, where the magistrate
courts and the municipal courts frequently have no public
defenders at all, first of all, you would have to get the local
government to agree to fund the position and then hire the
person who could pay their loan back. The jobs do not exist in
a lot of these courts.
If the Congress could take some steps in that direction,
incentivizing, as Erica suggested, so that they could get
funding, just as the law graduates could get funding, to enable
the local governments to have the public defender positions,
incentivize them, or, alternatively, authorize the Justice
Department to bring actions against them if they do not provide
counsel, then those are the kinds of incentives that would make
a difference.
As Senator Grassley pointed out, a lot of the States are
ignoring their obligation. Your program is--when it passed, I
had recently left public defense for academia and I know that
it was very, very popular among defenders.
Senator Durbin. I hope we can expand it. I would say to the
Chairman, we are talking about the John R. Justice Act to help
defer student loan payments for those who will give a 3-year
commitment to become prosecutors and defenders, and I hope I
can approach you a little later and talk about how we can
adequately fund that.
Let me also say that one of the things we are trying to do
is to take a look at Federal sentencing, and the object, of
course, is to reduce incarceration of those who are being held
for an extraordinary period of time for offenses which might
not merit mandatory minimums, for example, and money which is
currently being diverted into the Bureau of Prisons might then
be diverted into things that we have talked about here.
We are talking about prosecutors and defenders. We are also
talking about, I think, the prevalence--and I do not remember
if I heard this--it is your testimony--of many of these
criminal defendants dealing with substance abuse and mental
illness, and diversion from our penal system, corrections
system into treatment is certainly more valuable for the
individual and, I think, for society at large.
The last question I will ask in the minute or so left, if
anybody would like to respond. In my State, there has been a
suggestion that maybe we ought to change the law school
curriculum so that in the third year there are more
apprenticeships and more actual in-court experience by some of
these law students, so they might then entertain possibilities
of becoming prosecutors and defenders more realistically.
Does anyone have a reaction?
Ms. Hashimoto. I would agree with that, Senator Durbin. I
think the ABA has moved in that direction and is really
encouraging law schools across the country to expand their
clinical and experiential offerings so that law students can
serve the communities in which their law schools are housed and
provide assistance to those folks and, when they graduate, be
more capable of taking these jobs and be more experienced when
they start those jobs.
Senator Durbin. Thanks. Thanks, Mr. Chairman.
Chairman Grassley. I am going to start out with Chief
Justice Cady. Tell me if I am wrong, but I kind of believe that
Iowa has a better record than a lot of States in providing
defense in misdemeanor cases for indigents.
Are there any approaches that Iowa has taken to address
this problem that might help other States to improve compliance
with the Sixth Amendment for misdemeanor defendants?
Mr. Cady. There is, Senator. As a beginning to answer that
question, I think what we have tried to do is educate our
judges and our magistrates and, in turn, our prosecutors to
understand what the problem is that we have all identified this
morning, because to begin with, the myth has to be eliminated
from the process that a disposition that results in a fine is a
good outcome.
I think a lot of the magistrates and the judges and the
prosecutors in small misdemeanor cases work in that direction
thinking that they are providing an outcome that will work for
the offender.
It does not. What we are trying to do is educate the people
involved in our process so that our courts work in a way that
it solves the problems of people that come into its courtroom
instead of piling on to the problem.
I think our focus has been for judicial education.
Chairman Grassley. I am going to go to Mr. Fulton, please.
How does the expansion of Tribal courts' jurisdiction, for
instance, under the Violence Against Women Act and particularly
for non-Native Americans, impact the problem of indigent
representation for misdemeanor defendants, especially as it
affects Federal proceedings?
Many of us had concerns regarding the expansion of this
jurisdiction when we reauthorized that legislation. Are there
particular remedies the Committee could consider to address the
right to counsel issues arising from Tribal court proceedings?
Mr. Fulton. I think there are some things that could be
done, Mr. Chairman.
First, I think that in no circumstance should an un-
counseled conviction be an element, a sentencing enhancement,
or a predicate offense for a subsequent offender statute under
Federal law. It seems improper for our Federal laws to
capitalize on unrepresented convictions, wherever they come
from, Tribal or State court.
The Violence Against Women Act and Tribal Law and Order
Act, whether through lack of information or whatever basis, I
have heard from people where tribes have exercised that
expanded jurisdiction, but the protections under those statutes
are not being provided and individuals are receiving sentences
that are greater than they should receive.
The remedy to fix that is to go to Federal court and pursue
habeas corpus. I think that one thing the Committee could look
at there is to eliminate a requirement to exhaust Tribal court
remedies before seeking habeas under TLOA or VAWA. That would
expedite that and make it a meaningful remedy so the individual
would not have to sit in jail and go there.
Then lastly, I think going back and looking at whether an
expansion of Tribal court jurisdiction when resources may not
be available to non-Natives and sentencing enhancements when
there are existing Federal offenses that can cover many of
these is something the Committee could do, as well.
Chairman Grassley. Now, I am going to go to Professor
Hashimoto.
Your written testimony describes how misdemeanors and
misdemeanor prosecutions have exploded. This seems to reflect a
mind set that every problem has a criminal solution.
If this trend, as I see it, is right--and you had it in
your testimony, so I assume it is--what can be done to reverse
the trend?
Ms. Hashimoto. Thank you, Chairman Grassley.
I think it is important for the education that Chief
Justice Cady has talked about and, also, for States to
undertake looking comprehensively at their criminal codes and
identifying the offenses that are leading to the very high
volume of criminal cases.
Bob mentioned a couple of those, including driving on
suspended licenses, disorderly conduct cases. All of these
kinds of cases, particularly the ones that do not constitute
threats to public safety, could easily be reclassified either
as non-criminal cases or depenalized so that the collateral
consequences do not attach to those.
I think studying that problem in every State is very
important because I think in every State, the types of offenses
are slightly different and the offenses that are prosecuted at
the highest rates are also slightly different.
I do think that the States need some assistance looking at
their criminal codes and determining ways to decriminalize some
of those offenses.
Chairman Grassley. Thank you.
Now, Senator Franken and then after Senator Franken,
Senator Klobuchar.
Senator Franken. I just want to ask--thank you, Mr.
Chairman, for this very important hearing.
Just to the Chairman's question on court jurisdiction and
VAWA on Indian Tribal courts, those cases tend to be not
misdemeanor cases. Am I right?
Mr. Fulton. The underlying predicates frequently are
misdemeanor cases, Senator Franken.
Senator Franken. They are.
Mr. Fulton. Yes. I will give you an example. An individual
is called to a house. There is a report of a disturbance. There
is a public intoxication charge. There is a liquor violation
charge. There is a simple assault charge. Those can then give
rise down the road to the predicate offenses. Then the tribes
will exercise what I would call misdemeanor analogs, simple
assault for what is actually an aggravated assault. Frequently
they are misdemeanors.
Senator Franken. Okay. Thank you. In your testimony, you
reference reports from colleagues suggesting that Tribal courts
are failing to appoint effective counsel or failing to appoint
counsel all together. Clearly, this is not unique to Tribal
courts, as the testimony of all the witnesses testifies.
You mentioned severe backlogs and a general lack of
available lawyers in sparsely populated areas. You do the
Dakotas or just South Dakota?
Mr. Fulton. North and South Dakota, Senator.
Senator Franken. I imagine you see that throughout the
Dakotas.
Mr. Fulton. Absolutely, and it is a problem not only in
Tribal courts in the Dakotas, but also in State courts. I
mentioned Chief Justice Gilbertson in South Dakota has started
a program to try and incentivize lawyers to come back to
underserved rural communities. It is just a problem of rural
areas generally.
Senator Franken. What, in your opinion, and there has been
some testimony to this effect, what can we do to incentivize
attorneys, when they are starting their careers, to consider
serving the communities, these rural communities?
Mr. Fulton. I think John R. Justice is great, Senator
Franken. I have lawyers in my office that are beneficiaries of
that. State programs like South Dakota has initiated that is
similar to John R. Justice incentivizing people with student
loan forgiveness or repayment to bring them back to underserved
communities is a great idea.
I have to be candid. There is a ceiling at some level. I
love South Dakota. Not everyone chooses to live there. That is
just fine, but it is a reality. But those programs do work and
they do give people an opportunity. I think the discussion of
law school education and apprenticeship programs are great.
The University of Minnesota, my alma mater, has an
excellent misdemeanor defense clinic and it, frankly, when I
was there, incentivized a lot of people to go into indigent
defense. And those are great models to follow.
Senator Franken. University of Minnesota.
Professor Boruchowitz, it seems to me that one of the major
obstacles to solving the crisis is cost and you bring out in
your testimony that this really is cost to not providing
counsel.
Some of the witnesses here today have suggested that there
is a role for Congress to play in supporting an increase in
funding for the type of programs that provide indigent
defendants, but some of my colleagues might balk at the price
tag associated with funding those programs.
You have written the staggering--you just testified about
the staggering cost of misdemeanor cases.
Is it not true that a significant part of that cost is not
just prosecuting the misdemeanors, but incarcerating
misdemeanor offenders who may not have faced jail time at all
had they been effectively represented by counsel?
Tell us about this, the real cost here. Would it be less
expensive if we were providing counsel?
Mr. Boruchowitz. I think there are several different ways
of answering that. First, there is what you could call the
demand side, which is all the cases that need lawyers, and
Spokane is a good example, I think, in answering all of your
question.
First of all, the prosecutor realized that with the
caseload limits, which Chief Justice Cady mentioned, we now
have in Washington, they were going to need lots more defenders
if they did not get rid of some of the cases they had. Plus,
she also did not have enough lawyers to do what she needed to
do focusing on DUI and domestic violence.
She initiated a diversion program to work with relicensing
on suspended driver licenses. It took a third of the cases out
of the system and as a result, they only had to add two lawyers
to the defender office instead of many more.
Second, they reduced the cost for her office, as the
prosecutor, as well as the jail and the defender and they
started collecting more revenue for the underlying fines that
people with suspended licenses had because they helped them get
their licenses back so they could work, drive their kids to
school and so forth. They have brought in, over the past
several years, $4 million in additional revenue that they
probably would not have gotten otherwise.
The cost of jailing somebody is significant. As Erica said,
it is in the $30,000 a year range. For every person that you
are not locking up, you are saving that money.
On top of that, there is all the cost to the economy of
somebody losing their job, their housing, all of the
consequences that come from that.
Then finally, I would say that there is some research to
indicate, and my own experience confirms this, that when you
have a lawyer at the first hearing, very often the lawyer can
persuade the judge, ``My client is going to be safe to be in
the community, you can let them out pending the next hearing,''
and you save jail costs there.
For a relatively small investment in having the lawyer
there, you can yield a much greater savings in the jail costs
later on.
Senator Franken. Thank you very much. Thank you, Mr.
Chairman.
Chairman Grassley. Senator Klobuchar.
Senator Klobuchar. Thank you, Mr. Chairman. Thank you to
Senator Franken for also being part of this hearing. It is a
really important topic.
I was once a prosecutor, ran an office of 400 people, and I
remember you, Judge Cady, because I had you testify on the
cameras in the courtroom issue, and you are back, when we had
that hearing. Thank you for that.
I thought--also, this is near and dear to our heart in
Minnesota, because Gideon v. Wainwright, when Walter Mondale
was the Attorney General, he actually led the Attorney General
sent a letter supporting the right to counsel in that case. I
know there are many issues that come out of it and have not
been resolved, including this one. Thank you.
I will start with you, Chief Justice. When an individual
pleads guilty or no contest to a misdemeanor crime, there are
consequences of that action that extend beyond the immediate
fine or jail sentence.
What other effect do you think these convictions can have
that people do not think about immediately? And maybe you would
like to answer that, as well, Mr. Singleton.
Thank you.
Mr. Cady. The consequences are many and they come down the
line where they are not even considered at the time. That is
largely because our constitutional standard is premised on the
protection of someone's liberty from incarceration.
The consequences that follow, whether they are employment,
education, military service, whatever it might be, are not part
of the constitutional standard that is sought to be protected.
We have to uncouple our analysis of the issue at that point
and understand that this involves the right to counsel, but it
also involves making our justice system more fair and more
just, because when we do become better in doing our work, we do
avoid so many costs and so many heartaches later on down the
line.
I think it is imperative to understand that these
collateral consequences oftentimes have much more impact than a
jail sentence.
Senator Klobuchar. Right. Mr. Singleton, do you want to
elaborate on that a little bit?
Mr. Singleton. I wanted to add--thank you for the question,
Senator. One of the things I wanted to add that we have not
talked about yet is these collateral sanctions or consequences
can also lead to increased crime.
One of the things that we do at the Ohio Justice and Policy
Center is we have legal clinics in the community where we meet
with folks who are impacted in terms of getting work, primarily
getting work, but also other impacts, housing and the like, but
who come to us because they want to be law-abiding, productive
members of the community and they are shut out of work because
of their criminal convictions.
I had one client----
Senator Klobuchar. We just did a letter on this, a group of
Senators, for job application purposes, not having that be the
first question.
Mr. Singleton. That is terrific. I had a client a while
back say, ``Listen, what am I supposed to do to support my
family if I cannot get a job? I am going to have to do
something,'' and too often that something is something that is
illegal.
I think that--I mean, this is indirect, but I think that if
someone has a good lawyer, they can prevent the conviction,
they can prevent the spiral of having collateral consequences
that shut you out of work, I think that ultimately pays off in
public safety for all of us because we are keeping people more
stable and able to support themselves through legitimate work
rather than resorting to crime.
Senator Klobuchar. Very good. Thank you.
Professor Hashimoto, you talked about the need for better
data about indigent representation. How do you collect that
data? Just based on some of the research you have done, I guess
you could also answer that, Professor Boruchowitz. Just what
you see as a model that works in States. Go ahead.
Ms. Hashimoto. The Bureau of Justice Statistics has been
very good in felony cases about requiring jurisdictions to keep
pretty good data on who is being represented in felony cases
and by whom, so whether it is public defenders, court-appointed
counsel, or private attorneys. In felony cases, the data
indicates that it is about a 99 percent representation rate.
In misdemeanor cases, by contrast, there is just simply no
nationwide data at all. I think the Bureau of Justice
Statistics could be really helpful in helping to get some data
systems up.
My sense is that many, many, many misdemeanor courts
already keep some data, they have got court records on these
cases, and so all that would need to be added is a box that
says ``Was the defendant represented by a lawyer; if yes, what
kind of a lawyer.''
Senator Klobuchar. Okay.
Mr. Boruchowitz. I think collecting that data and then
compiling it so that we have got some record of exactly what is
happening on a nationwide basis is very important.
Senator Klobuchar. Professor, just quickly. I was asking
about models in other States that work the best.
Mr. Boruchowitz. Right. Part of the problem is that a lot
of these courts have their own systems that do not talk to
other systems. And so having some incentive for the States to
coordinate the data collection.
Some States are very good about keeping track of how many
cases individual lawyers have or at least what courts they are
operating in, but other States do not do that. Being able to
incentivize the States to coordinate the data and get their
local--I mean, some States literally have hundreds of courts
and so--and very often these are city courts with very little
resources. Having their computer systems talk to the State
system is not always to do, but being able to get all of them
to report that data, as Erica suggested, incentivize them to do
that perhaps with some Federal assistance to coordinate it.
Senator Klobuchar. Thank you. I am out of time here, but I
also wanted to thank you, Mr. Fulton, for your work. I know
your counterpart in Minnesota and I know how hard that work can
be.
I do want you to know when I was a prosecutor, I testified
at the legislature several times for full funding for public
defenders. I actually argued that it was our best way to get
good results if you have lawyers that are matched on both
sides.
Thank you.
Chairman Grassley. Senator Coons, you arrived just at the
right time.
Senator Coons. Thank you, Chairman Grassley. I would like
to thank you and Ranking Member Leahy and Senator Franken for
calling this hearing.
This is an important issue. We all know, the right to
counsel is one of the foundational rights of our constitutional
order. In misdemeanor prosecutions, as I know you have explored
in great depth, which are the majority of all cases and
prosecutions in the country, there is an uneven collection of
data, uneven access to counsel, uneven representation both in
terms of quality and timeliness and its impact on outcome.
I am grateful for the chance for us to talk about this
vital piece of criminal justice reform.
In the last Congress, I was pleased to be able to join with
Senator Sessions in holding a hearing about the Federal Public
Defender Service and then working on the appropriation side to
try and reduce some of the harmful impact of sequester on our
judiciary as a whole, but, in particular, on the Public
Defender Service.
I just wanted to ask a few questions, if I might, since I
suspect I am the very last thing between you and concluding the
hearing.
If I could, Mr. Singleton, there has been testimony about
misdemeanor sentencing and the significant racial disparities
which mirror some of the very disturbing racial disparities in
the criminal justice system as a whole.
One example cited earlier is that it is 3.7 times more
likely that an African-American will be charged with marijuana
possession than a white person despite identical rates of use.
How does the lack of representation in misdemeanor cases
contribute to or exacerbate the racial disparities in our
criminal justice system?
Mr. Singleton. I can speak certainly in terms of the
experience in Cincinnati and what we find there is that if you
are a person of color, you are more likely to be targeted for
police enforcement. As a result of that, not having good
representation just magnifies the problem that you face.
You are more likely to wind up with a conviction. Actually,
let me just say this. In Cincinnati, we have got our public
defender in Hamilton County is getting better. It had some
problems before, but it is getting better now. When I first
came to the Cincinnati area in 2001, it was a disaster and
because you had predominantly low income people of color in our
municipal court, which is where misdemeanors are prosecuted,
they were not getting adequate representation.
You had so many more of them winding up locked up in jail
when maybe they should not have been, but also accumulating
these collateral consequences, which make it hard to get work,
which drives the cycle of going in and out of the system.
Senator Coons. Collateral consequences in terms of
employment, access to housing, access to skills or training
programs, lots of other things that once you have a criminal
record continue to accumulate and in the absence of advice of
counsel on a three strikes law, for example, what began as
relatively minor misdemeanor offenses can end up having really
significant consequences long term.
Mr. Singleton. That is exactly right.
Senator Coons. Are there other members of the panel who
wanted to comment on this particular aspect of the impact of
lack of counsel for misdemeanor charges?
Mr. Boruchowitz. Senator, thank you for the question. I
think that David Singleton has pointed out that it is a spiral.
And one of the things that can effective lawyer can do is when
you identify racial disproportionality happening, you can
sometimes make a difference.
I had a case myself in our juvenile clinic. The client was
African-American. He was charged with trespass for literally
walking into a shopping mall. He had been there 11 months
earlier wearing a hood and in this particular shopping center,
you are not allowed to wear a hood.
Guess who they enforced that against? They enforced it
against African-American teenagers. They told him you cannot
come back for 1 year. He came back 11 months later and they
arrested him just for showing up.
I had been at a session at the University of Washington Law
School a week or so earlier and I heard the prosecutor talking
about we cannot have racial disparity. I know him and I could
call him up. Not every lawyer can do that. He looked into the
case and the next thing I know, the day before trial, the
prosecutor dismissed the case, which they should have done. It
made no sense to prosecute a young man just for showing up,
particularly, in the first place, when all he did was wear a
hood to get thrown out.
If that young man did not have an effective lawyer, he
could very easily have been convicted and the spiral would have
continued.
Senator Coons. If I could, Chief Justice Cady, we have
heard testimony today that suggests as much as $1 billion in
government resources could be saved by decriminalizing some
offenses that would really be better treated as civil
infractions, and that figure is in addition to the immeasurable
benefit to our citizens who might have to pay a fine, but would
not have to suffer diminished job prospects, loss of liberty,
other things we have been talking about.
In my home State of Delaware, there are some who have an
interest in undertaking this task moving toward civil citation,
but the process can be difficult both procedurally and
politically.
What advice would you have for States that want to rewrite
portions of their criminal codes in ways that would make them
more just, but also that would achieve the buy-in of the
community, law enforcement, prosecutors, judges, and elected
leaders?
Mr. Cady. That is something that certainly needs to be
explored and has been explored, but we also have to ensure that
we are solving the larger problem by doing it, because
sometimes switching into the civil enforcement concept does not
shed the problems that can follow later on because there is
still a record of that and the like.
I just think it is important that we continue to be
thoughtful about this. It is interesting, when I did testify
before this body 3 years ago, the testimony was divergent.
People had sides. I do not sense that at all this morning and I
sense that this is an issue that is profound. It impacts people
in such significant ways, and we are all pointing to the same
thing.
I think it just illustrates that when we sit in a
contemplative way and think about ways to make our process work
in a just way, it solves so many problems, whether it is the
cost avoidance later on or whether it is the racial disparity,
the problem that has now surfaced in our criminal justice
system that we are all aware of.
I think this is a unique opportunity for us to come
together on this issue and see how it can solve so many other
things.
Senator Coons. Thank you, Mr. Chief Justice. That is a
great concluding comment and I appreciate both the testimony of
the witnesses and your calling this hearing today. Thank you,
Mr. Chairman.
Chairman Grassley. I would like to have the last 5 minutes.
Before I do that, do any of you have followups you want to ask?
[No response]
Chairman Grassley. Then I will conclude this with a couple
questions.
Kind of a philosophical approach here, but it also has
practical, and I would like to have you all listen and any or
all of you that want to address it.
Some of the testimony today makes me wonder what is really
behind many misdemeanor prosecutions. States and localities are
fining defendants who cannot pay fines. Rather than
prioritizing serious misdemeanors that may pose a real threat
to the community, I have concerns that what might be driving
many of these cases is money and the people who are paying the
real costs are people who cannot afford it.
No one is really seeking jail time. Fines are being imposed
and fees are monitoring--for monitoring are paid to private
companies and when people cannot pay those fines, they go to
jail for not paying the fines that were imposed for minor
offenses.
Two questions. What is driving States and localities to
establish a system and do you think that the current system
looks uncomfortably like a minor--modern debtors' prison? Any
of you.
Ms. Hashimoto. Thank you, Chairman Grassley. Yes. I think
that is exactly what is happening. What we are seeing in States
across the country is local courts that, particularly after the
recession hit, did not have money to keep their courts afloat
and so began funding their local courts through the fines
assessed to usually poor people. The only way to get those fees
out of poor people was by threatening them with incarceration,
at which point people would beg for money from their families.
There are stories of this from across the country. We have
private probation companies threatening to revoke probation and
incarcerate people if they cannot pay; unconstitutional under
Bearden v. Georgia, but it is happening across the country.
Because there are no lawyers in those courtrooms, there is
nobody to say ``this is unconstitutional, you cannot do this.''
Mr. Boruchowitz. I think you are right, Senator. It is
consistent with the Justice Department finding about the town
in Missouri. And often it is really counterproductive because
it costs so much money to lock people up. It costs more money
to lock them up than it does to get the money from them to pay
the fines for which you are locking them up.
There are many, many courts that have what they pay or
stay, pay your fine or go to jail, without any consideration of
the ability to pay and if they cannot pay, they cannot be
locked up. If they did not have a lawyer in the first place,
they cannot be locked up for violating the condition of the
probation.
There is no question that money is driving a lot of this
and you can see it when you go into some of these lower level
courts and the focus of everybody from the clerk to the judge
to the bailiff, the sheriff, is how do we get money from this
person and how do we get a fine. There are standard fines that
are imposed often in hundreds of dollars or more without any
consideration of whether the person can pay.
Chairman Grassley. Anybody else?
Mr. Fulton. If I could, Mr. Chairman. One thing that I
think is true in Tribal courts is that and also a unique factor
is it becomes a proxy for enforcement of addiction issues,
dealing with addiction issues.
Singlehandedly, the most common misdemeanor offenses we see
in people's background are tribal liquor offenses or public
intoxication. It becomes a proxy for dealing with problems of
addiction and homelessness a lot of times in tribal
communities.
Mr. Singleton. I just wanted to add one thought. I agree
that money drives a lot of this, but I think we also have a
cultural issue here and the cultural issue is I think we over-
prosecute in this country.
I think we tend to bring into court and charge criminally
people we are mad at and we lock up people we are mad at rather
than people who are a true danger to the community. I think
that that is also behind the explosion of misdemeanor cases, as
well as felony cases, in our criminal justice system.
Yes, we should prosecute people who break the law and
pose--and lock up people who pose a serious danger to the
community, but most of the cases in municipal court in Hamilton
County, Ohio are not very serious at all, yet they can have
huge repercussions if there is a criminal conviction.
Chairman Grassley. Mr. Chief Justice, do you have anything
to add to the other four?
Mr. Cady. Mr. Chairman, I would just add that the explosion
of misdemeanor filings and convictions across the country and
in our State of Iowa, too, certainly has been looked at as a
revenue opportunity and that has exacerbated the issue that
brings us here this morning.
I would just tell you that in our State, we try to collect
the fine for a short period of time and if not, we refer it to
the prosecutor, who gets an opportunity to try to collect the
fine. About half of our counties have a process where the
prosecutor does that. After that, after a year, it is shipped
out to a private company and they go after it like any other
debt collection.
Chairman Grassley. I am going to end with this question
then for Professor Bruer--Robert. [laughter] Than you very
much.
Washington State has adopted approaches to take driving
with suspended license misdemeanor cases out of criminal
justice. That is a way to avoid triggering the constitutional
right to counsel and its accompanying State expense. It is my
understanding that this has taken a fair proportion of
misdemeanor cases out of the criminal justice system in that
State.
However, it is also my understanding that additional
misdemeanor cases are being filed that add to the criminal
justice system and negate all the driving cases that have been
moved out.
Is there--is that your understanding of Washington's
experience and if it is, what is causing new misdemeanor cases
to take the place of the old and what can be done about it? Am
I right?
Mr. Boruchowitz. You are partially right, Senator.
Chairman Grassley. Go ahead.
Mr. Boruchowitz. We have reduced dramatically the number of
driving while license suspended third degree cases. There used
to be probably 100,000 a year in Washington and I think those
have been reduced by at least half, maybe more than half.
The two largest cities, Seattle and Spokane, hardly file
any anymore because they divert them or they put them in
relicensing programs.
There has been some increase in filings, nothing close to
the amount that has gone away. One of your staff asked me to
look into that in Spokane and I did check with the prosecutor
and the prosecutor said, yes, there has been some increase
since the recession, but nothing close to the volume of what we
are taking out with suspended driver license.
Really there are three different things happening. One is
diversion accompanied with relicensing programs and local
prosecutors can do that without any State action.
Second, the legislature narrowed the type of offense that
could lead to suspended driver license, and then the department
of licensing passed a regulation that narrowed the group. There
are fewer cases that are eligible for it and then within that,
the prosecutors are filing fewer.
Of course, when you do not get your license suspended, you
cannot get arrested for driving with license suspended, with
saves a lot of money all around.
In general, the volume of misdemeanor cases has declined in
Washington very dramatically. We used to have over 300,000 a
year, now there is something like 220,000 or 210,000, and a big
part of that drop has been getting rid of the DWS-3 cases.
Chairman Grassley. Thank you very much, and all my
colleagues who have come. I appreciate very much your testimony
and the participation of everybody.
I will adjourn the hearing. By the way, the record will be
open for 1 week. You may get questions from any of us on the
Committee. Please answer in writing.
[Whereupon, at 11:28 a.m., the hearing was concluded.]
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